‘ND 88' Claim Unfair Treatment

SOUTH BEND — Anti-abortion activists arrested last spring for allegedly
trespassing at the University of Notre Dame are claiming their cases were
handled unfairly compared with past protesting groups at the college.

The anti-abortion protesters of last spring cite two groups: Soulforce and
activists from the Catholic Worker movement who separately protested causes at
Notre Dame in 2007.

A Tribune investigation on the issue has found there have been variations in how
some protesters were handled at the university.

Only members of the Notre Dame community may organize and lead a demonstration
on campus, according to du Lac, the university's policy handbook.

The policy requires that all demonstrations be registered in writing with the
associate vice president for residence life. Demonstrations may not impede the
freedom of the university community, and all demonstrations must be peaceful and
orderly, according to the policy.

About 100 people were arrested on Notre Dame property last May while protesting
President Obama's selection as commencement speaker. Protesters said Obama, who
is pro-choice on the issue of abortion, should not have been invited to speak
and receive an honorary degree at the Catholic university.

At least 88 of those charged with misdemeanor trespassing turned down an
opportunity to pay fines and end their legal cases, asking instead for trials.
Nearly all are from out of state.

One woman who pleaded guilty in the case was ordered to pay $166 in court costs
and was sentenced to the 10 hours in jail that she already had served after her
arrest.

During a recent court hearing for the protesters — known as the "ND 88" — St.
Joseph Superior Court Chief Judge Michael Scopelitis ruled that the defense can
move forward with discovery requests from the university.

The requests previously had been halted by Judge Jenny Pitts Manier until
further matters in the case could be cleared up. Scopelitis has taken the case
over from Manier, who recused herself after the defense raised
conflict-of-interest concerns.

Thomas Dixon, the attorney representing the ND 88, said part of the discovery
request submitted to Notre Dame includes: who made the decision to have the
defendants arrested, the factual basis of those arrests, details of Notre Dame's
demonstration policy, and whether that policy is applied uniformly.

Dixon said the defense also has questions about two other groups that previously
protested on campus, groups Dixon has been told faced lesser consequences.

The attorney is referring to members of the Catholic Worker movement and of
Soulforce, a group that advocates for acceptance of gays and lesbians on college
campuses. Soulforce members say they were arrested for trespassing at Notre Dame
in March 2007 but never faced any formal charges.

St. Joseph County Police jail booking data shows none of the Soulforce members
was ever booked into the county jail, nor were their names ever listed as being
charged in courthouse records.

Only one person from the Catholic Worker protest of Notre Dame's ROTC program
was officially charged, according to court records, but those charges were
dropped.

Soulforce protest

On March 8 and 9, 2007, members of the Soulforce Equality Ride visited Notre
Dame to promote greater tolerance and acceptance of gay, lesbian and bisexual
students.

Soulforce members and several students gathered on campus to encourage dialogue
about gay rights issues, according to the activists. The Soulforce members were
issued trespassing notices and told by campus police to leave, which they did,
said Delfin Bautista, one of the activists who participated.

The group returned the following day planning to place wreaths near the statue
of Notre Dame graduate Dr. Tom Dooley at the Grotto.

They were stopped as they walked onto campus, and they were told to leave,
Bautista said in a telephone interview Friday. Bautista said that when they
refused, he and five others were told by campus police officers that they were
under arrest for trespassing.

They were taken to the campus security building, where they were confined to a
room and their photos were taken, he said. They were not taken to jail. An hour
or so later, campus police transferred the six into a van and drove them back to
their hotel, Bautista said.

Campus police said they should expect to receive a notice from St. Joseph County
of when they would be required to appear in court to face the charges, but that
never happened, Bautista said.

"We never heard another word," said Bautista, who is a student at Yale Divinity
School.

Bautista said he still has two identical yellow slips of paper — Notre Dame
trespass notices — he received on those two days. They are marked with the date
and time and stamped with the signature of William Kirk, Notre Dame's associate
vice president of residence life.

Bautista doesn't believe he and the other Soulforce members actually were
arrested. "It was just a setup to get us off campus," he said.

Soulforce activist Haven Herrin, of Minneapolis, stated those same basic facts
in an interview Friday. Although she and other group members were handed
trespass notices and told they were under arrest, nothing came of it, she said.

"We never had to go to court or pay a fine, and it's not on our records. They
did not follow through on it," Herrin said. "I think they were trying to make it
clear they didn't want us on campus, but they didn't want the hullabaloo of an
arrest."

Court officials point out that trespassing citations are different from written
warnings issued by property owners to trespassers.

Official trespassing citations from police require an offender to appear in
court, according to St. Joseph County Prosecutor Michael Dvorak. The citations
then go to the prosecutor's office to be processed.

A warning from a place of business or private property owner generally states a
person is trespassing and must not return. If the person fails to comply and
returns to the property, owners must be able to prove they issued a prior
warning either in print, or verbally, to the offender.

ROTC protest

George F. Arteaga of St. Louis was arrested during a protest on campus against
the ROTC program. On March 26, 2007, near the Main Building, members of the
Catholic Worker movement protested the university's involvement in the military
training program.

Arteaga was arrested before the rally while attempting to hang a banner on a
campus war memorial. Nine others received trespassing citations, and three
people received trespassing notices, The Tribune reported at the time.

In a telephone interview Friday, Arteaga said campus police arrested and
handcuffed him, then drove him to the county jail. He was booked in jail and
spent the night there, and told he would appear before a judge at 1 p.m. the
next day.

Instead, a jail guard opened his cell at 11 a.m. the next day and said, "We're
letting you go," Arteaga recalled. He never had to appear before a judge and
never heard from the court system.

Court records show Arteaga was formally charged with trespassing and criminal
misconduct but that the charges were dismissed by the prosecutor's office.

"No one ever explained why," he said.

A spokeswoman for the prosecutor's office said Friday that information about why
the charges were dismissed was not readily available because of the age of the
case. Office officials were searching for more details but could not compile
them by the time of this report.

Dvorak said this week that he could not comment specifically on the ND 88 case
because of the pending litigation.

But in general, Dvorak said, cases of every kind are prosecuted based on the
strength of the evidence and that the prosecutor's office is consistent with
prosecuting procedures regardless of victim or complaining party. He added that
not any two cases are the same and that each is judged based on its individual
facts.

Some sought arrest

Some anti-Obama protesters showed up at Notre Dame last spring planning to be
arrested.

Anti-abortion activist Randall Terry's group issued news alerts in the days
before commencement encouraging the public to watch live online "the prayerful
procession and possible arrest of Dr. Alan Keyes, Norma McCorvey" ("Jane Roe" of
Roe vs. Wade) and others as they walked onto campus on the Friday and Saturday
of commencement weekend.

Keyes also announced in advance that he intended to be arrested. He was arrested
twice for trespassing in May.

Today, Dixon says the arrests of his clients were unwarranted and that all the
cases should be dismissed.

"We don't see any purpose in prosecuting these cases," he said. "How would that
benefit the county?"

During the recent hearing, Scopelitis denied Dixon's motion for dismissal.

"No admissible evidence was submitted by the defense in support of their
allegations that the arrests of and charges against the defendants are in
violation of their rights of free speech," the judge wrote.

The judge did allow for a possible future evidentiary hearing to further review
the motion to dismiss after more information currently in dispute is resolved,
Dixon said.